Anonymous ID: 15f1bd April 11, 2019, 8:36 a.m. No.6136388   🗄️.is 🔗kun

A comment by Instapundit (related to an article, but what I'm looking at is the add-on): "I believe a decent argument can be made that the post-Court packing judicial victories for the New Deal were procured by duress, and that later Supreme Courts are thus free to revisit them without the usual concerns for stare decisis."

 

https://pjmedia.com/instapundit/327336/

 

It's interesting to see a meme floated saying that the Supreme Court has a free hand to reverse any precedent made while the Court was under duress (not truly free to exercise independent judgment.) Of course the supreme court CAN reverse precedent (and has on occasion), but from the perspective of legal theory it's generally understood that there is a very high bar (that stability of the rule of law is important, so reversing existing precedent requires extraordinary circumstances, even for the Supreme Court.) What Instapundit is doing here is helping introduce the idea to the public that the Court CAN operate under duress, and if this happens it's fair for the Court to reverse any position taken during that period.

 

It's self-evident that a blackmailed Court's decisions should be very open to reversal, but what we're looking at here is laying the groundwork for both public acceptance in the context of explaining judicial philosophy that allows for actions outside the norm.

 

So far as I know, Instapundit has never mentioned Q/Storm but he's clued in enough that he is likely aware, so I interpret his silence as (like others with high visibility) part of the plausible deniability dynamic. If so, then the timing now of Instapundit floating this meme could be significant.